Reflecting on the Kunduz Hospital tragedy: isn’t it time for some questions for Doctors Without Borders, as well as for the human rights community?

Today the U.S. government released a redacted report of its investigation into the Kunduz hospital tragedy in which a Doctors Without Borders (DWB) hospital was mistakenly identified as an enemy target and attacked by an American AC-130 gunship.

Although the report concludes that the attack was unintentional, some 16 military members have received administrative disciplinary action as a result of the incident which killed, according to DWB, 42 persons and injured 229 others. Despite the virtually unprecedented scope and depth of the materials released (and I am still working my way through the many pages of attachments, etc.) DWB and other critics are already complaining.

Actually, the U.S. military has done the right thing here by thoroughly investigating the incident; releasing a huge amount of material about that investigation; accepting responsibility; holding U.S. military personnel accountable; voluntarily offering condolence payments to individuals and families; and paying millions to rebuild the facility. In addition, a variety of changes to the targeting processes were ordered, as well as supplemental training for some 9,000 troops.

Of course, an in-depth analysis of the released material is necessary to assess the adequacy of the reported disciplinary actions, but based on what I have seen thus far, it appears that the decision to opt for administrative action was the right one. As the report says, the “war crimes” designation is “typically reserved for intentional acts” and there appears to be utterly no evidence of anyone purposely attacking the hospital with the knowledge that it was a protected facility.

True, war crime liability can also arise in certain cases of “recklessness” but I haven’t seen evidence to support that accusation against any individual. [See this excellent discussion of “recklessness” in the context of war crimes on Just Security by Harvard professor Alex Whiting, as well as this essay on Opinio Juris by Cornell Law’s Jens David Ohlin who concludes that there “may be sound moral reasons to create a new war crime provision for accidents of this type, but I don’t think this conduct falls under the existing law as it stands now.“]

It also needs to be understood that if the gunship crew (i.e., those who conducted the attack) honestly believed they were striking an enemy target, such a mistake of fact could negate war crime liability. As Kevin Jon Heller put it (albeit regarding a different case) a conviction would not lie under contemporary war crimes jurisprudence if the perpetrators honestly believed they were attacking the enemy even though “that belief might have been negligent, even grossly negligent.”

[M]ust examine these questions prospectively; that is, from the perspective of the U.S. forces and what they knew at the time of the attack — not from the perspective of the hospital staff or from the retrospective view of the horrified observer or readers of the news after the fact.

Under U.S. military law (but not international law) criminal liability can also arise from simple negligence resulting in a death, but considering that the report also reflects that commanders took into account (as they should) “other mitigating factors, such as equipment failures, that affected the combat mission” the decision not to charge negligent homicide seems proper.

Why? The mitigating factors and equipment failures not only could themselves undermine a negligence finding, they might also refute the other constituent elements of the offense. Negligent homicide is laid under Article 134 (10 USC 934) of the Uniform Code of Military Justice, and this means that a finding of simple negligence is not alone enough to convict as it also must be proven that the negligence, under the circumstances, further constituted “prejudice of good order and discipline in the armed forces” or “conduct of a nature to bring discredit upon the armed forces.” (Keep in mind we are talking about the prejudicial/discrediting “conduct of the accused” him- or herself, not the impact of the ensuing incident on public perceptions.)

Roger Williams Law professor Peter Margulies raises another possible charge. He suggests (May 2) that the non-war crime offense of making a false official statement with intent to deceive and knowing it to be false under Article 107 of UCMJ (10 USC 907) may lie against the ground force commander for his version of the events. Peter rightly points out that “[p]rosecutions based solelyon false statements are rare” and that “[a]t best, a conviction on such a charge would have led to minor punishment.”

I also think that a prosecution for that offense could be problematic because there is a body of scientific evidence that seems to indicate that stress impacts someone’s cognition at the time of the incident (and we’ve seen this in friendly-fire cases), and might further create false memories or erode memory altogether. Additionally, studies show that “misinformation can influence memory for recently experienced, highly stressful events.” This kind of evidence is significant because, as the Manual for Courts-Martial states, “[a]n honest, although erroneous, belief that a statement made is true, is a defense.”

Was the situation stressful? And what about those “mitigating factors” and “circumstances” beyond the equipment failures? In his briefing on the report, the new commander of U.S. Central Command, General Joseph L. Votel, described them as follows:

[T]his was an extraordinarily intense combat situation. The ground force commander, as I mentioned in my remarks, and his force had been engaged for about four days in pretty intense combat. And up to the time of this particular strike, had been actually fighting at the location where they were.

So this was an extraordinarily intense situation. They were doing a variety of actions at the same time. They were trying to support their Afghan partners. They were trying to execute resupply operations, and they were trying to defend themselves. So the picture I’m painting for you is a very intense situation on the ground.

In addition, this extremely convoluted urban battle was being fought against an adversary the UN recently accused of responsibility for 62% of all civilian deaths in Afghanistan. Notably, the anti-government elements that the U.S. and Afghans forces were battling (and DWB admitted they were treating) presented a growing threat to Afghani healthcare. As the UN put it in February:

UNAMA also documented increased intimidation and threats against healthcare staff and institutions by Anti-Government Elements – 31 incidents compared to 14 in 2014. These threats led to multiple closures of health centres and the resignation of many female healthcare practitioners, depriving civilians of their right to access healthcare.

Yes, there were unquestionably a series of mistakes by U.S. forces that resulted in the unintended deaths and injuries, but mistakes do not necessarily equate to criminal conduct – and I think DWB knows that. Specifically, isn’t the fact that DWB is one of the few international humanitarian organizations that carries professional liability insurance a recognition by DWB that even honest, altruistic, and well-intended professionals do make mistakes, even tragic ones, especially when trying to operate in the turmoil of a war zones?

Put another way, isn’t it foreseeable that in an exceptionally chaotic combat situation (where a belligerent is making use of civilian buildings to conduct combat operations) that mistakes could occur in identifying a protected structure absent Protocol III markings or at least something to make it identifiable at a distance, especially when it’s known that attacking aircraft are being used?

(Consider that Article 18 of Geneva IV recognizes the need for recognition at a distance – as well as acknowledgement of the risk of hostile action – by providing that “The Parties to the conflict shall, in so far as military considerations permit, take the necessary steps to make the distinctive emblems indicating civilian hospitals clearly visible to the enemy land, air and naval forces in order to obviate the possibility of any hostile action. [Emphasis added]. Incidentally, both the International Committee of the Red Cross and the Red Crescent Society are active in Afghanistan and use their symbols).

Wouldn’t reasonably prudent persons – given the risk Article 18 recognizes – have marked their medical facility with an internationally-recognized symbol or something of similar clarity to the warring parties, to include those in the air – even if international law did not, per se, require it? Wouldn’t due care demand it in that situation? Should we ask if DWB’s practices have anything to do with their historical differences with the ICRC?

Commendably, DWB provided their GPS coordinates to coalition authorities, and the U.S. plainly should have done a better job in ensuring the location of the hospital was known to all those who needed to know. Still, the fact remains that reliance on GPS has been viewed as legally problematic in other settings, and this underlines the value of physical markings such as those found in Protocol III and elsewhere.

There is a reflexive, open anti-Americanism from [DWB]. The group proudly says it treats everyone at their hospitals, regardless of affiliation: Taliban, Boko Haram, civilian. They find moral courage in treating even “bad” people because of their belief in the humanitarian principle of treating all people equally… unless the U.S. is involved. One soldier who deployed to Afghanistan in 2002 has told me that one MSF [DWB] facility refused to treat an injured child because she was brought to the hospital by U.S. troops. Their laudable commitment to medical ethics and political neutrality in war seems to falter when Americans get involved.

To my surprise, DWB has admitted that in the past they have refused to treat particular persons. Here’s what DWB said in 2012 about not treating patients being interrogated by Libyan authorities:

Patients were brought to us in the middle of interrogation for medical care, in order to make them fit for further interrogation. This is unacceptable. Our role is to provide medical care to war casualties and sick detainees, not to repeatedly treat the same patients between torture sessions…. [DWB] medical teams were also asked to treat patients inside the interrogation centers, which the organization categorically refused.

I really don’t know what medical ethicists would say about this (e.g., shouldn’t the suffering get a vote as to whether he or she is to be treated under these circumstances?), but here’s the real issue: if medical providers are to speculate as to their patients’ future, what then do we make of DWB’s decision to treat belligerents of “both sides” in their Kunduz facility? (In the hospital at the time of the attack there were, according to the Intercept, “three or four Afghan government soldiers and about 20 Taliban fighters, two of whom appeared to be of high rank.”)

Doesn’t it appear then that while DWB did not want to make patients “fit” for further interrogation in Libya, it had no issue in making Taliban soldiers “fit” for further fighting in Kunduz? Why is this a concern? Here’s what Amnesty International said about Taliban activities in Kunduz immediately before (Oct. 1) that heartbreaking hospital strike (Oct. 3):

The harrowing accounts we’ve received paint a picture of a reign of terror during the Taliban’s brutal capture of Kunduz this week. The multiple credible reports of killings, rapes and other horrors meted out against the city’s residents must prompt the Afghan authorities to do more now to protect civilians, in particular in areas where more fighting appears imminent,” said Horia Mosadiq, Afghanistan Researcher at Amnesty International. (Italics added.)

This report is troubling from two perspectives. First, doesn’t the report suggest the following question: if DWB considers the probable future activities of a patient in determining whether or not to treat them, why would they treat Taliban so as to make them “fit” to conduct further brutalities like those Amnesty International describes?

In my view, medical providers ought to treat “both sides” but do so without prejudice or discrimination. They should not be in the business of trying to speculate what others may do to their patients in the future, or what those patients may do themselves.

The second point is how the Amnesty International report illustrates the terrible urgency of the situation, and the enormous stress and pressure that U.S. and Afghan forces must have felt in trying to rid Kunduz of those inflicting such horrors on the civilian population. As the Wall Street Journal points out, “[d]ecisions on the battlefield must be made in real time with lives in the balance, and failing to act can also result in casualties.”

This does not excuse the U.S. in making mistakes that kill patients and providers, but it does put context into the circumstances which should be considered by commanders in making decisions about accountability when things go horribly wrong.

Finally, what about the human rights community? It is ironic to me that although the human rights community has been (rightfully in my opinion) so vociferous in its demands for due process rights for accused terrorists, they nevertheless didn’t seem to evince the same concern for the U.S. military members accused of “war crimes” in the incident. As I wrote last October:

Before any investigation could get underway, DWB President Meinie Nicolai already pronounced her judgment: the incident was, she claims, “a grave violation of international humanitarian law.” One has to wonder, does DWB routinely declare a diagnosis before investigating the facts?

Moreover, in a statement that seems almost calculated to offend Americans’ sense of fairness, DWB General Director Christopher Stokes asserted that there is a “clear presumption that a war crime has been committed.” In the U.S. — and most rule-of-law countries around the planet — there is a “clear presumption” not of criminality, but of innocence.

Did anyone in the human rights community call out DWB for these wholly premature statements? Did anyone stand up and insist upon the application of the presumption of innocence or, for that matter, any degree of due process before anyone should draw conclusions as to whether or not a “war crime” occured? Failing to stand against a rush-to-judgment is, in my humble opinion, a departure from what human rights groups ought to be doing.

To be clear, there is no question as to the U.S.’s responsibility in this horrifying event, and I don’t want to minimize it. That said, I can only imagine the pain and sorrow that those responsible must feel.

In addition to whatever sanctions have been imposed upon them, they also have to live with the misery of knowing of their involvement in this truly heartrending episode. This can be an unbelievably heavy burden for the young men and women in uniform who put their lives on the line to try to help the Afghan people have a better life, and to protect our country and the rest of the world from further attacks like those of 9/11.

Though the detractors will never be satisfied, I think that there are very few instances in the history of warfare where a nation made a greater effort to do what should be done when a terrible mistake happens. What is important now is for everyone to learn from the disaster, and for those in the armed forces to continue to fight against an enemy everyone knows is all too willing to intentionally visit incalculable atrocities upon the helpless.

About Maj. Gen. Charles J. Dunlap, Jr., USAF (Ret.)

Charles J. Dunlap Jr., the former deputy judge advocate general of the United States Air Force, joined the Duke Law faculty in July 2010 where he is a professor of the practice of law and Executive Director of the Center on Law, Ethics and National Security.
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